Ross v. Garnett, 2012 NSSC 334

SUPREME COURT OF NOVA SCOTIA Citation: Ross v. Garnett, 2012 NSSC 334 Date: September 25, 2012 Docket: Tru No. 282076 Registry: Truro Between: Bruce Ross Plaintiff v. Stanley Garnett carrying on business as Steeple Developments; Riverbend Log Homes a New Brunswick registered business; and Phoenix Wood Products Ltd., a New Brunswick registered corporation Defendant LIBRARY SHEET Judge : The Honourable Justice Allan P.

Boudreau Heard: October 17, 18, 19 and 20, 2011 in Truro, Nova Scotia, and December 15, 2011, in Halifax, Nova Scotia, and July 31, August 1, 2, 7, 8 and 9, 2012 in Truro, Nova Scotia Subject: Contracts - Negligence - Building Construction Standards - Apportionment of Liability Issues: 1. What are the contractual relationships between the parties and what obligations flow from those relationships? 2. What are the deficiencies with respect to Mr. Ross ’ home? 3. Which party is responsible for those deficiencies? 4. Did Mr. Ross fail to mitigate his damages and, if so , on what basis? 5.

Were any of the parties negligent or contributorily negligent and, if so, on what basis? 6. What measure of damages, if any, should be awarded to Mr. Ross and against which defendant?

Summary: The plaintiff, Bruce Ross ( “ Mr. Ross ” ), contracted with Stanley Garnett ( “ Mr. Garnett ” ), carrying on business as

Steeple Developments, to purchase a Riverbend Log Home kit manufactured by Phoenix Wood Products Ltd. ( “ Riverbend ” ). Mr. Garnett was the exclusive dealer for Riverbend Log Homes in Nova Scotia. Mr. Ross also contracted with Mr. Garnett to construct the log home, ( “ the home ” ), with the exception of plumbing and electrical work. Mr. Ross also undertook the responsibility to sand and stain the finished home. The home was constructed on land registered in the name of Mr. Ross ’ mother and she is also the mortgagor of the property to raise funds for the construction. Mr.

Ross alleges deficiencies in the construction of the home by Mr. Garnett and in the quality of the log home kit supplied by Riverbend and he claims substantial damages. Mr. Garnett and Riverbend have cross-claimed against each other seeking indemnity or contribution in the event that any liability is assessed against any of them. They have also alleged failure to mitigate and/or contributory negligence on the part of Mr. Ross. Result: Found the first defendant liable for most of the post construction problems, especially water infiltration into the home.

Found the second defendant responsible for the issue with support posts for the front gable wall only. Found the plaintiff responsible for 50% of the water damage to the home due to lack of reasonable mitigation to lessen water infiltration. Awarded the plaintiff $43,467.26 and $6,595.97 against the first and second defendants, respectively, plus costs on a party and party basis, to be apportioned between the defendants. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Ross v.

Garnett, 2012 NSSC 334 Date: September 25, 2012 Docket: Tru No. 282076 Registry: Truro Between: Bruce Ross Plaintiff v. Stanley Garnett carrying on business as Steeple Developments; Riverbend Log Homes a New Brunswick registered business; and Phoenix Wood Products Ltd., a New Brunswick registered corporation Defendants DECISION

Judge: The Honourable Justice Allan P. Boudreau Heard: October 17, 18, 19 and 20, 2011 in Truro, Nova Scotia, and December 15, 2011, in Halifax, Nova Scotia, and July 31, August 1, 2, 7, 8 and 9, 2012 in Truro, Nova Scotia Counsel: Alain Begin, for the plaintiff John DiCostanzo, for the defendants, Stanley Garnett and Steeple Developments John Shanks, for the defendants, Phoenix Wood Products Ltd. and Riverbed Log Homes By the Court : Introduction [ 1 ] The plaintiff, Bruce Ross ( “ Mr. Ross ” ), contracted with Stanley Garnett ( “ Mr.

Garnett ” ), carrying on business as Steeple Developments, to purchase a Riverbend Log Home kit manufactured by Phoenix Wood Products Ltd. ( “ Riverbend ” ). Mr. Garnett was the exclusive dealer for Riverbend Log Homes in Nova Scotia. Mr. Ross also contracted with Mr. Garnett to construct the log home, ( “ the home ” ), with the exception of plumbing and electrical work. Mr. Ross also undertook the responsibility to sand and stain the finished home. The home was constructed on land registered in the name of Mr.

Ross ’ mother and she is also the mortgagor of the property to raise funds for the construction. [ 2 ] Mr. Ross alleges deficiencies in the construction of the home by Mr. Garnett and in the quality of the log home kit supplied by Riverbend and he claims substantial damages. [ 3 ] Mr. Garnett and Riverbend have cross-claimed against each other seeking indemnity or contribution in the event that any liability is assessed against any of them. They have also alleged failure to mitigate and/or contributory negligence on the part of Mr. Ross. Preliminary Issue [ 4 ] The defendant, Mr.

Garnett, has reasserted what was its nonsuit motion contending that Mr. Ross has no standing to sue and/or cannot prove damages because the land on which the home is built is registered in his mother ’ s name. A reason advanced for presenting this argument anew at the close of the case is that the Court drew inferences of transfer of ownership in its nonsuit decision, specifically in Paragraphs 1 and 7 of that judgement, which Exhibit 9 shows were incorrect. From that Exhibit it does appear that ownership of the land on which the home is built was in fact always in Mr. Ross ’ mother ’ s name.

However, I find that this nuance of fact does not alter the basic premises on which Mr. Ross ’ interest in the property was found to be sufficient to dismiss the nonsuit motion and I dismiss that argument at this time as well. Issues

[5] 1. What are the contractual relationships between the parties and what obligations flow from those relationships? 2. What are the deficiencies with respect to Mr. Ross ’ home? 3. Which party is responsible for those deficiencies? 4. Did Mr. Ross fail to mitigate his damages and, if so , on what basis? 5. Were any of the parties negligent or contributorily negligent and, if so, on what basis? 6. What measure of damages, if any, should be awarded to Mr. Ross and against which defendant? Background [6] Mr.

Ross was working as an apprentice electrician in 2001 and his intention was to become a licensed electrician. Around this time, he became disabled due to exposure to asbestos. He has been on permanent disability benefits through Workers Compensation ever since. [7] In early 2002, Mr. Ross was living in a mini-home. Around that time, he saw a model log home and he testified that it had been a long time dream of his to have such a home. The model home which he saw was being displayed by Mr. Garnett, who was then the local representative and exclusive dealer for Riverbend Log Homes in Nova Scotia. Mr.

Ross represented that he owned a 17 acre piece of land in the country and that he wished to construct a log home on that property. As it turned out, the property had been purchased in 2000, not in Mr. Ross ’ name, but in his mother ’ s name. Mr. Ross testified as to the arrangements with his mother for ownership of this property; however, I have found that nothing which is in issue in these proceedings turns on the fact that the property continues to be registered in his mother ’ s name. Obviously, it was necessary for Mr. Ross ’ mother to be the mortgagor to raise the funds to purchase and construct the home.

Mr. Ross testified that he has paid all the mortgage payments as well as taxes and insurance on the home since its construction. He testified that the property is to be conveyed to him when the mortgage is paid or upon his mother ’ s death. I have ruled that Mr. Ross has a sufficient interest in the property to bring and maintain this lawsuit. [8] All of the dealings for the purchase and construction of the log home kit were between Mr. Ross and Mr. Garnett, although it appears that Mr. Ross, at some point prior to or during his dealings with Mr. Garnett, obtained a log home brochure from Riverbend.

In June of 2002, Mr. Ross entered into two separate contracts with Mr. Garnett; one for the purchase of the log home kit and one for the erection of the kit on the property. [9] Mr. Ross has testified that he was not made aware of the amount of initial treatment required of a white cedar log home or of the regular maintenance and care to follow. He said Mr. Garnett never advised him of this fact. He also points to the Riverbend brochure, a copy of which is found at Tab-2 of Exhibit-1, which lists “ reduced maintenance ” as one of the main features of Riverbend Log Homes.

All of the evidence I have heard during this trial leads to a contrary conclusion; which is that log homes are anything but “ reduced maintenance ” . They require regular vigilance for “ checks ” or cracks when the natural process of wood products losing moisture occurs and regular treatment of these checks. Also, the surface treatments of the cedar logs, both initially and at regular intervals thereafter, especially on the exterior, is very important. Therefore, the claim of “ reduced maintenance ” is not borne out by the evidence presented at this trial. All this to say that Mr.

Ross was not prepared for the extent of the initial treatment and subsequent maintenance which would be required of his log home. I find that Mr. Ross did not acquire the knowledge or have the ability to carry out those tasks and responsibilities which he undertook. The result is that he was in over his head from the beginning. [10] Nevertheless, Mr. Ross signed separate contracts with Mr. Garnett for the purchase and construction of the Riverbend log home kit in June of 2012. All of the contracts are signed by Mr. Ross and Mr. Garnett. In order for Mr. Garnett to be able to sell the kit

to Mr. Ross, Mr. Garnett had to purchase the kit from Riverbend. The kit from Riverbend comes with a Warranty, which is transferrable to the home owner, in this case to Mr. Ross. This warranty forms part of and is attached as a “

schedule ” to both the contract between Mr. Garnett and Riverbend and the contract for sale of the kit from Mr. Garnett to Mr. Ross. [11] Mr. Ross has testified that the lines were blurred as to whether he was dealing solely with Mr. Garnett, or a combination of Mr. Garnett and Riverbend. While that may have been so initially, I am satisfied that, by the time Mr. Ross signed the contracts for the purchase and construction of the log home kit with Mr. Garnett, he knew that Riverbend was not involved in the construction of the home.

The Warranty [12] I am also satisfied that the Riverbend Warranty, which was transferred to Mr. Ross upon the purchase of the kit from Mr. Garnett, was explained to Mr. Ross. Mr. Ross signed a clause contained in the Warranty to that clear effect. A full copy of the Warranty is found at tab-14 of Exhibit-1. Clause 1.12 provides a 20 year warranty that; “the cedar log wall components ... will meet or exceed the applicable wall structural standards as specified on the date of delivery in the NATIONAL BUILDING CODE OF CANADA”. Aunden Rae ( “ Mr. Rae ” ) of Riverbend testified that this essentially “ covers rot ” .

However, the Warranty goes on to exclude damage caused by a variety of factors in clauses (

a) to (f). These exclude damage “ due to ... improper installation , or damage that could have been prevented through the use of preservatives or other reasonable maintenance measures . ” (Emphasis added) The foregoing will turn out to be two important issues in this litigation. [13] It is useful to set out exclusion clauses (

a) to (

f) of the Warranty; which are as follows: PROVIDED THAT: (

a) DAMAGED MATERIALS MAINTENANCE: This warranty does not apply to materials damaged after delivery, due to accident, abuse, improper handling, storage or installation, or damage that could have been prevented through the use of preservatives or other reasonable maintenance measures. (

b) TO WHOM THE WARRANTY APPLIES: The Manufacturer provides this warranty only to the original Purchaser of the log home package and is fully transferable under the terms of this warranty. (

c) LIMITATION OF LIABILITY re QUANTITY/QUALITY OF MATERIALS SUPPLIED Where the Manufacturer is obligated to supply a replacement or provide compensation for the value of any missing or defective materials supplied as a part of the log home materials supplied, the Manufacturer is not liable for any other claims for damages or losses or expenses, including labour costs, damage due to construction delays, whether or not the Manufacturer has been notified in advance. (

d) LOCAL REQUIREMENTS, PERMITS AND DESIGN VARIATION It is the responsibility of the Purchaser to ensure that the structure conforms to all applicable zoning, building code, structural and other

requirements, including building and other permits, in effect at the location of construction by the Purchaser, the Manufacturer making no warranty in relation thereto. The warranty outlined in

part 1.1.2 above does not extend to or include compliance applicable cedar log wall component ’ s structural standards where the structural/plans, as approved by the Purchaser, involve changes from Standard Riverbend Log Homes or arise via other plans/sketches requested or provided by the Purchaser, the Purchaser being responsible in respect to such matters.

When used in this Warranty, “ Standard Riverbend Log Homes ” means those homes listed in Exhibit I attached to this warranty and the plans/designs in respect to which the Manufacturer has received independent engineer approval as to wall structural compliance with the National Building Code of Canada. A copy of such approval is available on request. (

e) INCORRECT ASSEMBLE: The Manufacturer accepts no responsibility for any structure, including it ’ s components, which has not been constructed in accordance with the final plans and assembly instructions. (

f) MAINTENANCE: The manufacturer does not warrant it ’ s log members or other materials against insect damage or damage due to weather conditions. [14] It should be noted that clause (

c) limits Riverbend ’ s liability to replacing defective materials only, and it does not include any other ancillary costs, such as labour costs or other expenses. It should also be noted that clause (

d) also makes the purchaser responsible to ensure that the structure conforms structurally to building code or building permit requirements in effect at the location of construction and Riverbend makes no warranty in that regard. The second paragraph of clause (

d) goes on further, in effect, to void the warranty in clause 1.12 if problems arise because of changes to Riverbend ’ s standard log home plans. The responsibilities for obtaining permits and/or approved plans are also in issue in this litigation. [15] Clause (f), under the heading “ Maintenance ” , also excludes insect damage or damage due to weather conditions . It is unclear whether this exclusion is different from clause (

a) or whether it should be read jointly with that clause. [16] Parts 3 and 4 under the headings, “ Assembly ” and “ Be it Known ” are also important factors in the determination of liability, if any, and they are as follows: 3. ASSEMBLY: 3.1 SUB-DEALER ASSEMBLY: If the Purchaser enters into an agreement with a dealer or sub-dealer of the Manufacturer, to perform work or services/or to provide materials, other than materials listed in

Schedule “ B ” to the agreement to which this warranty is attached as

Schedule “ A ” , the dealers/sub-dealers performance shall be as an independent contractor employed/retained by the Purchaser. The Manufacturer is not held responsible for the performance of any such or other contractor or party. 4. BE IT KNOWN: 4.1 The cedar components used in all RIVERBEND LOG HOME kits have been carefully graded and inspected prior to shipment, with a certain amount of “ checking ” (prior to and after installation) in the solid wood timbers and wall logs being normal and common to

solid wood structures. The Purchaser acknowledges and accepts such checking. 4.2 This warranty is administered by PHOENIX WOOD PRODUCTS LTD. of Nackawic, New Brunswick, holder of trade mark rights to the name “ RIVERBEND LOG HOMES ” , which company referred to in this warranty as “ The Manufacturer ” . [Emphasis Added] Page V of the Warranty is signed by Mr. Ross as it having been examined in its entirety by him. It is also signed by Mr. Ross as “ purchaser ” , and by Mr. Garnett on behalf of Phoenix Wood Products Ltd. (Riverbend). There is no dispute that Mr.

Garnett was authorized to sign this Transferrable Warranty on behalf of Riverbend and to bind the Company in that regard. I also find that that would be the extent of Riverbend ’ s contracted dealings or contractual obligations with Mr. Ross. [17] The undisputed evidence is that Mr. Ross had the contractual documentation, including the Warranty, for approximately two weeks before they were returned to Mr. Garnett to finalize the deal. While it may be that the Warranty was not fully explained to Mr. Ross by Mr. Garnett, there is no evidence that Mr.

Ross was not able to read it or that he had difficulty understanding it. Mr. Ross was determined to have the home built if he could manage it financially. The Plans [18] During the dealings between Mr. Ross and Mr. Garnett, and the exact timing is not clear, there were several revisions to the “ Standard Plans ” provided by Riverbend for a “ Sugarbush ” log home.

One of the first revisions was the addition of another dormer to the upstairs. [19] The main revision which has become a contentious issue in this litigation is the change from support beams anchored to the loft area to “ Lally ” posts in order to support the front gable wall. The original standard plan provided by Riverbend indicated the support beams. There is no consensus as to how this change came about. Mr. Garnett testified that the change came about at Mr. Ross ’ request because he did not want the support beams for aesthetic reasons. Mr.

Ross, in his direct examination, denies that he requested or insisted on this change, however, in cross-examination he stated that he did not want the loft over the kitchen to go to the window gable wall. He then stated that Mr. Garnett told him that “ Lally ” posts could be installed instead of tying and supporting the gable wall with beams to the loft. I am satisfied that the “ Lally ” posts came about as a request by Mr. Ross to not have the support beams tied to the loft; however, it does not appear that anything turns on who requested the “ Lally ” posts.

It is clear from Exhibit-5 that this intended change was communicated to Riverbend by changes and notes on Plan Revision # 2 and that Revision # 3 was subsequently prepared by Riverbend. Revision # 3 was introduced as separate Exhibit-4 and is also found at Tab-17 of Exhibit-1. This plan shows two “ Lally “ posts 3 x 7, on the flat, supporting the front gable wall. [20] Mr Garnett testified that virtually all of the similar log homes which he has constructed in Nova Scotia incorporated “ Lally ” posts identical to the present case to support the gable walls, and without any structural problems.

Once it was decided that “ Lally ” posts would be used, a revised plan came from Riverbend, in this case Revision # 3 showing 2/ 3"x7" “ Lally ” posts installed on the flat and fixed to the front gable wall at regular intervals. The posts were then supplied by Riverbend as part of the log home kit, but they were not manufactured by Riverbend. The posts were a laminated type beam manufactured by a third party who is not involved in this litigation.

For reasons which are not clear, the evidence indicates that one or both of the posts proved ineffective to properly or adequately support the front gable wall of the home. This will be discussed in more detail later when examining the various experts ’ reports and their testimony. Responsibility for the Building Permit and Engineer Approved Plans [21] Riverbend has contended all along that it is not responsible for making sure that purchasers of its log home kits are supplied with or obtain “ Engineer Approved ” plans for the location or jurisdiction where the construction takes place.

In this regard it points to clause (

d) of the Warranty and to the “ Note ” in the right hand margin of the plans (in this case Revision # 3) which it supplies to purchasers. [22] In this case, Mr. Ross did not want a “ turnkey ” type construction contract with Mr. Garnett. Mr. Ross wanted to look after the plumbing and electrical, either by performing some of the work himself, or subcontracting part or all of this work. Mr. Ross also

undertook to perform the sanding and staining required to finish the home. It is clear that Mr. Ross was trying to undertake some of the work which a “ general contractor ” would perform and sub-contract some of the work in order to reduce the costs of construction. I therefore find that Mr. Ross was acting as “ the general contractor ” in this regard. Mr. Garnett was only to perform the work specified in his contract quotes, which are found at Tabs-5 & 6 of Exhibit-1. [23] Mr.

Ross also undertook the responsibility to obtain the necessary building permits from the local municipal authority and to obtain a professional engineer ’ s approval for the construction plans necessary to obtain the required permits. The application for the building permit is found at Tab-E of Exhibit-2. This document specifies under comments: “ Will bring in eng approved plans ... ” . In fact, it was Mr. Garnett who recommended the engineer so that Mr. Ross could get the construction plans approved and stamped accordingly by the engineer. Therefore, there can be no doubt that Mr.

Garnett was well aware that engineer approved plans were being obtained. [24] Mr. Ross then took the plans provided by Riverbend (Revision # 3) to the engineer for approval. The result is the “ Engineer Approved ” set of plans which are found at Tab-F of Exhibit-2. These “ Engineer Approved ” plans make certain changes to Revision # 3, the relevant one for this litigation is that the engineer changed the size and position of the intended 3"x7" “ Lally ” posts on the flat - to “ 6x8" select structural on edge anchored to the wall ” . Mr.

Ross is not certain how these “ Engineer Approved ” plans ended back at the local municipal authority, but it is safe to say that they made their way there because the building permit was ultimately issued. [25] Mr. Garnett testified that he never looked at or obtained a copy of the building permit. More importantly, he stated that he never saw or obtained a copy of the “ Engineer Approved ” building plans, even though he was well aware that Mr. Ross had taken the plans to the engineer recommended by him. Mr Garnett said that he asked Mr.

Ross on a couple of occasions for a copy of the “ Engineer Approved ” plans but that he did not receive them. He said he then simply asked Mr. Ross if there were any changes and that Mr. Ross said there were none. With that information from Mr. Ross, Mr. Garnett proceeded to construct the home without ever seeing the “ Engineer Approved ” building plans. The Construction Phase [26] The construction phase was uneventful in itself, except to note who was on site during most of this time. There is no dispute that Mr.

Garnett was on site for the first day or so of the work when the log home kit was delivered and when the erection of the walls was commenced. Mr. Garnett testified that he is usually present and involved in the erection of the first 3 or 4 rows of logs to ensure that the construction commences with square and plumb walls. The evidence establishes that, from then on, Mr. Garnett was not present for most of the construction and that his visits to the site were primarily centered around the collection of progress payments. [27] The construction of the home was left to Mr.

Garnett ’ s son, Dustin Garnett ( “ Dustin ” ) and Mr. Garnett ’ s lead hand, Kirk Zwicker ( “ Mr. Zwicker ” ). Both Mr. Garnett and Mr. Zwicker were trained by Mr. Rae of Riverbend and Dustin learned on the job working for Mr. Garnett. Dustin is presently working as a “ Building Official ” with the Halifax Regional Municipality. Dustin testified that he was involved in approximately 10 log home constructions from 1998 - 2002. Mr. Zwicker would have been the more experienced or “ lead hand ” on the construction of Mr.

Ross ’ home; however, he did not testify at this trial. [28] The home was essentially constructed by Mr. Zwicker and Dustin. The construction was completed without any significant events. Dustin testified that Mr. Ross was, at times, intimidating and/or uncooperative, however, there is no evidence that Mr. Ross ’ actions or attitude affected the construction of the home in any significant manner. It appears that this evidence was led to support Mr. Garnett ’ s contention that Mr. Ross was uncooperative when deficiencies or defects became issues after the end of construction.

The Supplier of Windows and Doors [29] All of the windows and doors for the home were supplied by Riverbend as part of the log home kit. Mr. Ross had no

part in the selection of these materials, except as to colour specifications, etc. Riverbend selected the manufacturer and supplier of these products and had been sourcing them out exclusively to Donat Flamand, a division of Jeld-Wen of Canada Ltd., for a number of years. The windows and doors were guaranteed against defects such as leaking, etc, provided they were properly installed. The installation of these materials became an issue when leaks in or around windows and doors were brought to Mr. Garnett ’ s attention in late 2002 and early 2003. Shortly After the Completion of Construction

[30] Not long after the completion of construction, which was around November of 2002, Mr. Ross was noticing leaks around the windows. These leaks were noticed in the winter and early 2003, some 2 to 4 months after the completion of construction. Mr. Ross contacted Mr. Garnett but Mr. Ross testified that he was not getting any response from Mr. Garnett. He stated that Mr. Garnett did not return many of his telephone calls. Mr. Garnett testified that by early 2003, he had received a list of alleged deficiencies through Mr. Ross ’ lawyer, but that he was not getting any co-operation from Mr.

Ross to get in the house to do the repairs. Mr. Garnett points to his hand written notes dated February 1, 2003 (Exhibit - 2 - Tab 5) as evidence that he was willing to effect repairs, but that Mr. Ross would not permit him to come to the house and perform any repair. He said that he received an insulting phone message from Mr. Ross telling Mr. Garnett not to attend at the house and that Mr. Ross was going to sue him. However, Mr. Garnett was able to attend at the home on February 4, 2003 and did effect some repairs and assessed the alleged deficiencies. [31] On the February 4, 2003 visit, Mr.

Garnett was accompanied by a representative from the windows and doors manufacturer. Mr. Garnett testified that he was told by the window representative that the front patio door was 3/8" out and that he was told to adjust the “ striker ” , which he did. Mr. Garnett testified that he also did some temporary silicone caulking of some checks in the logs during that visit to rule those out as the source of leaks. He stated that this silicone caulking was minimal, he estimated approximately 10 cracks, and that it was never intended to be a permanent solution and that he made that clear to Mr. Ross. Mr.

Garnett emphasized that the checks which he siliconed were minimal, more like “ hair line ” cracks in the logs and that they did not look anything like the cracks shown in photos which were taken in 2007 and later and which are included in the various subsequent experts ’ reports. [32] Mr. Garnett testified that Mr. Ross ’ home is the “ poorest maintained log home ” that he has ever seen. The Windows and Doors [33] During 2003 and 2004, representatives of Donat Flamand, the manufacturer of the windows and doors supplied by Riverbend as part of Mr.

Ross ’ log home kit, attended at the home to investigate the leaks in and around these materials. After these few visits, Donat Flamand determined that the windows and doors were not properly installed and they denied any responsibility for any leaks. In other words, in their opinion, the improper installation voided any warranty associated with the windows. [34] Donat Flamand is not party to this litigation and their decision has not been formally challenged in these proceedings; however, an argument has been advanced by the defendant, Mr.

Garnett, that their decision cannot be accepted for its truth in this trial. The various reports from Donat Flamand confirming this decision were admitted into evidence as business records of that company. Regardless whether that decision would be found to be correct if litigated, it must stand as a fact which this court must accept in assessing responsibility for any ongoing problems with the windows and doors. To rule otherwise would lead to an innocent party who had no control over the warranty of these materials without any recourse in these proceedings.

The warranty, whatever it may have been, would appear to be in favour of Riverbend, who have cross claimed against Mr. Garnett and any dispute over Donat Flamand ’ s decision to void any warranty regarding these materials rests with them. Neither of those defendants has brought Donat Flamand into these proceedings. Therefore, in my opinion, Donat Flamand ’ s decision to void any warranty must stand as a fact in these proceedings.

The leaks in and around many of the windows and doors have continued to this date, but this will be addressed later when dealing with the problems addressed by the various experts and their reports. Problems Generally [35] I will now outline in a general way the problems which have developed since the construction of Mr. Ross ’ home. Leaks: [36] Many leaks have developed, causing damage, primarily to the interior of the home. Most of these leaks appear to be related to and around windows and doors. The water infiltration has caused staining and other damage to the interior of the home.

A few of these leaks may be attributed to rather large “ checks ” or cracks in a log adjacent to the windows or doors; however, the majority of the leaks do not appear to be related to “ checks ” in the logs.

“Checks” or cracks in the logs [37] A significant number of the logs, particularly on the exterior, have developed rather large cracks which, in some cases, mayallow water to infiltrate the home; however, the cracks which may allow water to infiltrate the home are few. The majority of the cracksin the logs are problematic and continue to worsen or cause additional water infiltration and damage, if not repaired. The exterior of thehome, by all accounts and by the many photos introduced as evidence, depicts a home badly in need of repair and maintenance.

The “Lally” Posts [38] The “Lally” posts (“the posts”) which were substituted to support the front gable wall have proven to be inadequate in Mr.Ross’ home for that purpose. All of the experts agree that the wall is not stable and moves when pressure is applied just by pushing on it.Also, one of the posts has an inward “bow” which is noticeable with the naked eye. All agree that the situation has to be remedied.

Moisture stains on interior walls [39] All agree that water infiltration has caused extensive staining of the interior walls, but there does not appear to be extensivedevelopment of rot; at least nothing which cannot be repaired. It appears that the water stains can be sufficiently removed to provide areasonably acceptable interior finish for the home. Responsibilities for the present condition of the home [40] It is useful to point out at this stage that, while Mr.

Ross places all the blame for the present condition of his home on thedefendants, they in turn blame a significant portion of the resulting condition on a lack of proper initial sanding and sealing by Mr. Ross.They also allege that he did not provide reasonably adequate maintenance of the “checks” which occur naturally in log homes. Theyclaim that proper maintenance and other preventative measures would have minimized much of the damage now complained of by Mr.Ross. This issue will be discussed when considering the various experts’ evidence.

The Governing Law [41] The legal principles which apply to this case are not complicated. In my opinion, it does not significantly matter whether oneproceeds by way of breach of contact, negligence or sale of goods legislation. They all point to the same basic principle; that is that Mr.Ross could expect to receive a reasonably well constructed home, both with regard to quality of materials and quality of workmanship.That does not equate to a perfectly constructed home, a standard which would likely be impossible to achieve. What Mr.

Ross was and isentitled to is a reasonably well constructed home, consistent with the standards applicable at the time of construction. This straightforward approach was approved of and clearly summarized by Justice Wright of this court in Connolly v Greater Homes Inc., 2011NSSC 291, at paragraphs 39 and 40; [39] ... 3.

Although there is a difference between contract and tort law as to the relevant moment for determining whether damages wereforeseeable (i.e., the time of formation of the contract in contract law and the time when the breach occurs in tort law), nothing turns onthat distinction on the facts of the present case; [40] It has long been established in the law of building contracts that there is an implied condition that the builder will perform the workin a good and workmanlike manner including the supply of good and proper materials as contracted for (see, for example, Stoddard v.Atwil Enterprises Ltd. (1991) (NS SC), 105 N.S.R. (2d) 315 and the authorities therein referred to).

The defendantclearly breached that implied condition in many respects in this case, some of which have already been identified earlier in this decision

and others which will be addressed later when a breakdown of the total claim is made. The expert evidence establishes that the defendantalso failed to comply with the National Building Code in several instances. Before getting to that stage, however, it is necessary to firstaddress the other damages issues set out above. [42] In the present case, the defendants have also alleged a failure to mitigate on the part of Mr. Ross.

With regard to this issueJustice Wright in Connolly went on to state the question as follows at paragraphs 41 to 43: [41] Unquestionably, the plaintiffs bear the burden of proving their damages. The defendant, on the other hand, bears the burden ofproving that the plaintiffs failed to mitigate their damages and that any unsuccessful expenditures intended to mitigate the damages wereunreasonable.

A plaintiff cannot recover damages which it could have avoided by reasonable conduct in the circumstances. [42] These legal principles are nicely summarized in Halsbury’s Laws of Canada, 1st ed., (2008 Construction Volume) at pages 217 -219. It is unnecessary to quote at length from this authority other than to insert the following: What is reasonable depends on all of the circumstances of the case. The innocent party is not held to a high standard. The innocent partyis only required to act based on what it knows at the time, without the application of hindsight. It need not undertake anything risky.

Thewrongdoer is entitled to expect the aggrieved party to act reasonably, not perfectly. [43] The foregoing principles have been illustrated and applied by our court in Stoddard in which Justice Saunders wrote as follows(atparagraphs 108 - 110): 108. I also find no merit to the defendant’s second argument. The general principle which underlies the law of mitigation is that aplaintiff must act reasonably to avoid further damage or increased costs against the defendant.

This duty to act reasonably is related to thedate of assessment of damages, in that the plaintiffs’ duty to mitigate does not arise until a reasonable time after the assessment date.Normally the date of assessment is the date the contract is breached. However, there are certain exceptions to the “breach date rule”. Oneof these exceptions is found, as here, in the so-called “repair” cases. The shift began with Dodd Properties v. Canterbury City Council,[1980] 1 W.L.R. 433 (C.A.)., where it was held that the plaintiff was justified in deferring repairs up to the time of trial.

This principlewas also applied in a case of defective construction, where: “...the plaintiffs had felt unable to incur the considerable expenditure needed before they were assured of recovering this amount fromthe defendants who had vigorously disclaimed liability right to the door of the court.” MacGregor on Damages, referring to Cory & Son v. Wingate Investments (1980), 17 Build. L.R. 104 (C.A.) 109. This same approach was taken in Costello v.

Cormier Enterprises Ltd. (1979), (NB CA), 28 N.B.R. (2d) 398(C.A.), where the New Brunswick Court of Appeal held that the owner of the house was justified in waiting to establish the builder’sliability before embarking on a full program of repair. 110. The Appeal Division of this court, in the case of Canso Chemicals v.

Canadian Westinghouse (1974), (NS CA), 10 N.S.R. 306, referred to McGregor on damages (13th edition at p. 229) for eight rules with respect to mitigation including: “1. a plaintiff need not risk his money too far ... “8. a plaintiff will not be prejudiced by his financial inability to take steps in mitigation.” [44] Justice Saunders went on to find (at para. 111) that it was entirely sensible for the plaintiffs to have waited to ascertain their finallegal position before deciding on the extent of the corrective measures they were willing to take. He added that there was no onus on

them to incur further debt to effect these repairs and then await the outcome of trial and the determination of liability, noting that the defendant disclaimed any responsibility throughout. [Emphasis Added] Analysis of Expert evidence: Mr. McMahon: [43] Four experts provided reports and testified at trial. Two presented by Mr. Ross and two presented by Mr. Garnett. The first expert presented by Mr. Ross was Richard McMahon ( “ Mr. McMahon ” ). His report is found at Tab - 19 of Exhibit - 1. Mr. McMahon has extensive experience in the log home industry.

He was a partner in Heartwood Log Homes Ltd. from 1984 - 2008. He took his first log home construction course in 1979. Since that time he has taken approximately 4 more education workshops or courses regarding log home construction. He has concentrated on log home restoration and inspection since 2008. During his career he has been involved in the construction of over 100 log homes and since 2008 he has performed 48 formal log home inspections. One part of Mr. McMahon ’ s testimony which I found unusual and at odds with all of the other experts was his comment on the “ seasoning ” or drying of cedar log products.

In his opinion it was impractical to season natural logs, although he stated that different styles of home construction require different levels of seasoning. All of the other experts and non experts alike place emphasis on the need for adequate seasoning of log home kit components. Conversely, this was an important factor in Mr. DeBay ’ s opinion regarding the present condition of Mr. Ross ’ home. [44] Mr. McMahon performed a visual inspection only of the home, both inside and outside. He attended the property on August 12, 2010, some eight years after construction.

He did not perform any water infiltration tests, although he did observe obvious signs of water infiltration which he attributed to “ poor workmanship during the installation of the windows and doors ” (See page 2 of his report). He speculated that there may also be a problem with the adequacy or installation of gasket material between the logs; but he did not perform any tests to confirm this opinion. [45] Mr. McMahon confirmed that checking is a feature of all log homes and that any such checks on the exterior must be sealed with proper material. He agreed that silicone is not suitable for a permanent fix. Mr.

McMahon also confirmed that the size of the checks were larger than one would expect; however, he could not say if this was the result of inadequate seasoning before construction of inadequate treatment and maintenance after construction. [46] Mr. McMahon testified that he did not look closely at the windows except to check for leaks. He did not check them to ascertain if they were plumb, level or square. He did however confirm the noticeable “ deformity ” or bow in the gable wall. He further stated that all the windows on the gable wall should be reinstalled.

He also opined that the exterior should have cedar siding applied because, as he said, “ caulking may not do it ” . With regard to water stains on the inside of the home, Mr. McMahon was of the opinion that the majority of these could be repaired with proper treatment. [47] In Mr. McMahon ’ s opinion the best way to repair the problems with Mr. Ross ’ home is to properly install a good quality siding to all the exterior walls, new windows, etc. He estimated that the whole repair job would take a 4 person crew approximately one month to complete the repairs.

He provided a total cost estimate of $136,992.60, however, he did not provide a breakdown of this estimate. He said his estimate was as at October, 2010, and that one could increase that amount by $5 - 6,000 by the date of trial. [48] On cross-examination, Mr. McMahon testified that most of his experience with log homes had been custom, hand crafted homes as opposed to those constructed from kits. He also indicated that he had not worked on Riverbend Log Homes specifically, but that he had worked on log homes with similar profiles. Mr.

McMahon agreed that when he prepared his report in September of 2010, he had not received or reviewed a copy of the Riverbend construction manual. [49] Mr. McMahon also agreed that the home could be repaired “ without tearing the whole place down ” . He also conceded that the exterior walls could be repaired with adequate caulking and treatment, but that these would require more future maintenance than red cedar siding.

Mr. DeBay: [50] The second expert presented by Mr. Ross was Philip DeBay ( “ Mr. DeBay ” ). Mr. DeBay has been a certified Building Inspector since 1989 with a total of 30 plus years in construction and inspection. While Mr. DeBay has considerable experience in building construction generally, he agreed he did not have much experience in log home construction. He has previously been accepted as an expert witness in this court, but this is the first time he has been called to testify in a log home case, although he has inspected a number of log homes. [51] Mr.

DeBay ’ s inspection was conducted in April of 2007 and this was a visual one only and he did not conduct any invasive type of inspection or conduct any water infiltration tests. He could not say if the water infiltration was from the windows or through the walls. He stated he had not been requested to do a cost estimate of any repairs. Like the other experts, he confirmed that the “ home is unacceptable condition ” . He confirmed that any attempt at sealing or caulking had been ineffective. Mr.

DeBay testified that, when conducting his inspection or preparing his report, he had never referred to the Riverbend Log Homes manual. [52] Mr. DeBay confirmed the instability of and bowing of the front gable wall and that it can be moved by pushing on it with one hand. [53] Mr. DeBay testified that he had detected a couple of places where rot was evident, some of which he attributed to improper caulking or sealing. [54] In the final analysis, Mr. DeBay stated that there was a lot of work which had to be done to the home which he did not think was quantifiable.

He opined that the entire home had to be torn down and to start over, basically with new materials. [55] On cross-examination, Mr. DeBay agreed that insufficient or improper maintenance of a log home can lead to excessive “ checking ” over time and that this will lead to deterioration of the house. Mr. DeBay emphasized that log homes require regular caulking and staining. He also indicated that the “ butt ends ” of the logs had discoloured because not enough sealant had been applied from the beginning. [56] On further cross-examination, Mr.

DeBay agreed that the most he could say was “ in this house - something was done wrong to allow water seepage into the home ” . Mr. Boucher: [57] The first expert witness presented by Mr. Garnett was Dale Boucher (Mr. Boucher ” ). Mr. Boucher, together with his brother, owns Junction Lumber Products of Bathurst, New Brunswick. He built his first hand crafted log home in 1983. In 1993, he started the log home business and began selling cedar logs and lumber for the manufacturer of log home kits. His company manufactures log home kits as well. Mr.

Boucher provides on site assistance for the construction of log homes and he has overseen the construction of approximately 200 log home walls. He testified that he has sold kits (approximately 300 to date) all over the world. Mr. Boucher has been personally involved in the construction of approximately 30 log homes. He has also personally repaired or overseen repairs to log homes, including the replacement of older logs. He has repaired log walls and he inspects log homes for customers and he recommends remedial action. Mr. Garnett is one of Mr.

Boucher ’ s customers, but this business only accounts for between 1 and 2 percent of Mr. Boucher ’ s overall business. Mr. Boucher ’ s company has also sold cedar logs to Mike Peters ( “ Mr. Peters ” ), the other expert who testified at trial. Mr. Boucher stated that he has 4 or 5 customers in Nova Scotia. I do not find that any of these minor connections influenced or affected the objectivity of Mr. Boucher ’ s testimony and I accept his evidence without reservation. [58] Mr. Boucher prepared two reports for this trial and these are found at Tabs BB & CC of Exhibit - 2. Mr. Boucher made his first visit to Mr.

Ross ’ home in May of 2009. This first visit was for a visual inspection only to assess what problems may be evident and to take photographs, but not to ascertain the causes of the problems.

[59] In his first report (Tab BB), Mr. Boucher noted the same or similar problems which both Mr. McMahon and Mr. DeBay had observed. He noted significant water infiltration into the home. He, like the previous experts, noted serious concerns with the windows and doors and with the “ Lally ” posts supporting the front gable wall. He specifically noted a “ definite lack of maintenance on the exterior walls ” . He further stated, “ Both the stain and the caulking have lost their effectiveness with their neglect . ” [Emphasis Added]. Mr.

Boucher also indicated that the interior walls had never been properly sanded and finished or sealed. [60] Mr. Boucher also noted one log piece which showed a sign of outer decay. He was of the opinion that, in his experience, this could be readily repaired. Mr. Boucher concluded his first report by saying that “ After reviewing the house of Mr. Ross, there is some cause for concern but there is no problem with this house that cannot be remedied ” . He went on to outline steps to be considered in effecting the required repairs. [61] Mr. Boucher made a second visit to the home in July of 2009.

At that time he performed numerous water infiltration tests on the windows and doors to see if it could be determined how or where the water was entering the house. In some instances it could be determined that the window itself was leaking, and in others it could not be determined exactly how or where the water was entering the house around the windows. Mr. Boucher testified that he did not focus his water tests on the walls because it was obvious to him that the significant infiltration of water was around the windows and doors and that the defective ones should be replaced. [62] On cross-examination, Mr.

Boucher agreed that leaking around windows in a log home cannot be considered normal. He agreed that proper installation is essential. He also stated that checks in the logs, especially for the first 2 years is normal; but that checks do not affect the structural integrity of the home. Mr. Boucher reiterated that the lack of proper maintenance of the exterior of the log home was “ plain to see ” and that this causes problems. He said it is important to make sure the homeowner understands this. [63] In the final analysis in Mr.

Boucher ’ s second report (Tab CC), he indicated that approximately 30 checks on the exterior walls and 25 on the protruding corner logs should be sealed. He emphasized the importance of proper preparation before recaulking and staining. Mr. Boucher again concluded that, “ this house, with some proper maintenance, repairs and adjustments can be brought back to what Mr. Ross expected as a beautiful log home. It would then be expected that Mr. Ross keep up the maintenance with products and care that is demanded with living in a log home ” . Mr. Peters: [64] The second expert witness presented by Mr.

Garnett was Michael Peters. Mr. Peters is a native of Germany and he commenced his carpentry career there. He became a licensed carpenter and eventually foreman in charge of some 20 employees before coming to Canada. He was in charge of construction, on site. He was involved mostly with timber roof and framing. [65] In 1988 Mr. Peters came to Canada and started Chedabucto Log Homes. Mr. Peters developed his own log home system which he then had patented. His company manufactures log home kits. He has been involved in the manufacture and assembly of log home kits since coming to Canada.

He has also assembled log home kits manufactured by other companies. [66] Mr. Peters is also involved in the repair and maintenance of log homes. He has performed 3 restorations in the last few years, including the removal and replacement of rotten logs, recaulking and refinishing both the exterior and interior of homes. He has performed renovations and restoration on approximately 10 log homes in total. He also has customers for whom his company does maintenance and fixes checks in the logs and which they reseal and recaulk. [67] Mr.

Peters ’ company was retained to perform certain tests and assessments of the problems with Mr. Ross ’ home. They were requested to identify the problems, recommend remedial action and estimate the cost of repairs. Mr. Peters, together with Gunter Bruennier, a structural engineer, own and operate Chedabucto Log Home Construction Ltd. Both Mr. Peters and Mr Bruennier performed the assessments and both authored the Company ’ s report, which is found at Tab - DD of Exhibit - 2, ( “ the Peters report ” ). Although both of these persons inspected the home and authored the report, it was agreed that only Mr.

Peters would testify at trial. It is readily apparent that Mr. Peters and Mr. Bruennier performed the most indepth inspection and assessment of the home and their report reflects this fact.

[68] The Peters report identified many of the same problems as had been noted by the other experts, Mr. McMahon, Mr. DeBay and Mr. Boucher. The Peters report goes further than any of the other expert reports in that it provides more detail as to the sources of the problems and the remedial measures recommended. The Peters report also quantifies the estimated cost of repairs; as much as was possible without removing windows and/or window frames or other more invasive investigations. It should he noted that Mr. Ross would not consent to removing anything to permit a more thorough inspection.

He even would not let Mr. Peters remove or lower a pot light to enable Mr. Peters to insert a small snake camera and light to investigate the cavity over the porch. [69] Nevertheless, I find that the Peters report and the testimony of Mr. Peters are the best evidence this court has in determining the extent of problems, the remedial action required and the cost of repairs to Mr. Ross ’ home. This evidence, because of its thoroughness and the experience of Mr. Peters is the most persuasive and I accept it over the evidence of the other experts.

I also note that there is not a significant difference between the evidence of Mr. Boucher and the Peters evidence as far as the direction which the repairs should take. I also find that Mr. Boucher ’ s evidence, because of his knowledge and experience, is more persuasive than that of Mr. McMahon and Mr. DeBay. Conclusion on the Expert Evidence: [70] For the reasons stated previously, I accept the Peters report of July 2011 and the testimony of Mr. Peters over the evidence of the other experts. Although Mr.

Peters found that the home was constructed in accordance with the “ Riverbend Log Homes 2003 Construction Manual ” , he also noted the same problems with the installation of the doors and windows and with the “ Lally ” posts as the other experts had noted. It is not necessary to recite every procedure and every finding contained in every page of the very comprehensive Peters report. They speak for themselves.

Suffice it to say that the water infiltration into the home has been found by all experts to be abnormal, excessive and very significant. [71] I accept the conclusions contained at pages 65 and 66 of the Peters report. There is, however, one issue on which I should comment. That is the issue regarding the fastening of the “ Lally ” posts to the front gable wall and the amount of vertical settlement which Riverbend expects or allows, which is 3/8" per 8'. Mr. Peters was of the view that, in his experience, it is more likely to be 1" per 8'. Mr.

Rae attributed this difference of opinion to the fact that the system of groves and gaskets in the Riverbend design is different from the system of groves and gaskets in the Chedabucto design. These opinions may very well both be correct, depending on which system is considered; however, I find that, in this case, nothing turns on that difference of opinion when it comes to assessing the water infiltration into the home and the recommended repairs and their costs. [72] The Peters report at pages 66 and 67 outlines the “ Extent of Recognizable Repairs ” and their “ Estimated Costs ” . At trial, Mr.

Peters had been requested to provide his breakdown of those estimated costs and these were provided to the Court as Exhibit - 8. Exhibit - 8 was also supplemented and further expanded or detailed during the direct and cross-examination of Mr. Peters. I accept the Peters report as to the required repairs and their costs, as supplemented by the testimony of Mr. Peters. [73] Exhibit - 8 arrived at a total cost for repairs of $37,593.50; however that estimate did not include additional costs for crew accommodation and travel expenses. Mr. Peters provided those additional details during his testimony.

He also acknowledged that his estimated costs were as of 2011, and if the repairs were to be effected a year or two later, which is a realistic time frame, that one would have to increase certain aspects of his estimated costs by approximately 15%. I will now recite below, the “ Cost Breakdown ” as found in Exhibit - 8 for ease of reference and adjustment in accordance with Mr. Peters ’ testimony: Cost Breakdown: (

a) Windows i. Estimated cost of Materials $ 11,600.00 ii. Estimated cost of Labour $ 3,800.00

(

b) Southwest Gable Wall i. Estimated cost of Engineering $ 1,250.00 ii. Estimated cost of Materials $ 1,460.00 iii. Estimated cost of Labour $ 1,280.00 (

c) Remaining Exterior Walls and Windows i. See (

a) above for Window cost ii. Estimated cost of Wall Repair (incl. cost of Corn Blasting) (

a) Cost of Material $ 5,500.00 (

b) Cost of Labour $ 4,650.00 (

d) Interior faces of Exterior Walls i. Estimated cost of Materials $ 120.00 ii. Estimated cost of Labour $ 800.00 (

e) Dormer Siding i. Estimated cost of Materials $ 330.00 ii. Estimated cost of Labour $ 1,200.00 (

f) Porch Ceiling i. Estimated cost of Materials $ 300.00 iii. Estimated cost of Labour $ 400.00 Estimated Total $ 32,690.00

15% HST $ 4,903.50 TOTAL $ 37,593.50 [74] Mr. Peters indicated that his crew accommodation, food and travel costs were not included in his estimated costs. He anticipated a crew of 4 men which would take approximately 15 working days; however, one third of that time should be deducted because of the lack of mitigation on the part of Mr. Ross. It was estimated that those costs would be approximately $350 - $400 per day for 4 men = $375.00/day x 10 working days = $3,750.00. I would therefore increase his estimate by that amount. [75] Mr.

Peters also testified that his estimate should be increased by approximately 15%, or between $5000 and $10,000 because it was calculated at 2011 costs. $37,593.50 x 15% = $5,640.00 and I would increase his estimate by that amount as well. That would increase the total estimate, not including accommodation costs, to $43,233.50. [76] Mr. Peters also testified that a restoration and repair project such as this would warrant a contingency amount of between 20% - 30%, and I would allow 25%. $43,233.50 x 25% = $10,808.37; and I would increase the estimated cost by that amount for a total estimated cost of $54,041.87.

That amount does not include the $3750.00 for crew accommodation and travel which would bring the total estimated cost to $57,791.87 . [77] I also accept that Mr. Ross will not be able to stay in the home while most of the repair work is being performed, especially considering his lung problems. I therefore award him $2000.00 to find alternate accommodation while the repair work is carried out. [78] This would amount to total damages of $59,791.87 . Apportionment of Liability [79] I have no hesitation in finding that the water infiltration into Mr.

Ross ’ home is due almost entirely to poor workmanship on the part of Mr. Garnett. This is primarily related to the improper installation of the windows and doors. Moreover, the improper installation of these materials has resulted in the voiding of any warranty or any responsibility on the part of the manufacturer. The result of the improper installation of these materials has also resulted in water damage to the interior of Mr. Ross ’ home. However, Mr. Garnett is not responsible for all the damage to the interior of the home, as I will discuss shortly. [80] I find that Mr.

Garnett was also negligent in failing to reasonably or adequately advise Mr. Ross, both before and after construction, of various issues regarding ownership of a log home. One could go as far as to say that this amounted to negligent misrepresentation. [81] There is no question that Mr. Ross was not adequately informed or advised by Mr. Garnett as to how he should sand and seal the home with proper finish after completion, and the importance of doing so. Mr. Ross was also not informed as to the maintenance required of such a home, both before purchase and after construction, and how that should be carried out.

Nevertheless, Mr. Ross also had a duty to inform himself and seek advice from qualified professionals once he became aware of the problems and maintenance issues arising after completion. There is no question that Mr. Ross was in over his head when he undertook to try to prepare, sand, seal and maintain the home; however, when it became apparent that water was infiltrating the home, he took very few measures to reduce the water infiltration. He apparently did nothing, not even a plastic covering pending repairs or remedial work. There were reasonable and very inexpensive measures which could have been taken.

This is quite a different situation from the Stoddard case, supra. Mr. Ross more or less threw up his hands and said, this is someone else ’ s problem. He also apparently, as can be seen from the photos, took very few steps to maintain the exterior walls of the home. The experts testified that this was one of the most poorly maintained log homes they had ever seen. [82] Therefore, Mr. Ross has to bear some responsibility for the present condition of the interior and exterior of his home. Mr.

Peters was adamant that poor maintenance and the lack of maintenance and easy stop gap measures had contributed significantly to the

deterioration of the home. He initially said he could not say to what degree with any certainty. When pressed for a percentage he said perhaps 60%. I am not able to accept such a speculation, and when a court is faced with apportioning responsibility in the face of unclear or unconvincing evidence, the remedy applied is to apportion responsibility equally, and I do so in this case. Therefore, Mr. Ross is only entitled to recover 50% of the cost of repairs to the interior and exterior walls and porch of his home. (See cost of walls and porch repairs in the amounts of $10,150.00, $920.00 and $700.00 respectively.

I will reduce any amount awarded to Mr. Ross by 50% of those totals adjusting for HST - 15%; increased costs from 2011 - 15%; and contingency award - 25%. This will be adjusted in my

Summary from the quoted amount which totals $11,770.00 [83] There remains to be seen what, if any, portion of the net award to Mr. Ross is the responsibility of Riverbend. Mr. Rae testified as to Riverbend ’ s quality control procedures, particularly with seasoning or drying the logs, both before and after milling the kits. I do not find that there were any material deficiencies in the log kit supplied by Riverbend. While there may have been some questionable craftsmanship with some of the windows and doors, Mr.

Garnett ’ s improper installing of the materials voided any claims against Riverbend on that account. [84] However, I am not similarly inclined with regard to the “ Lally ” posts. Those posts were recommended by Riverbend and they were installed as shown on the Riverbend Plans (Revision # 3). It may very well be that, if Mr. Garnett had insisted on seeing the “ engineer stamped ” plans (Tab - F of Exhibit - 2), he would have requested alternate “ Lally ” posts from Riverbend, but that is only speculation. There can be no question that it was unprofessional for Mr.

Garnett to proceed to build the home without seeing those plans when he knew they existed; however, it is not clear to me that the design of these posts were the cause of their failing in this case. The evidence was that these posts have been used numerous times in the past, without any structural problems. I find that the cost of replacing these “ Lally ” posts rests with the party who supplied them, that is Riverbend.

Riverbend will therefore be responsible to pay the cost estimate to repair the support posts for the “ Southwest Gable Wall ” in the total amount of $3,990.00 as shown on Exhibit - 8; plus the 15% HST; plus the 15% increase in costs since 2011; plus the 25% contingency allowed. This total (obviously compounded) amounts to $6,595.97 . That is the extent of Riverbend ’ s liability in this case. In these circumstances, I find that Riverbend is liable for the total cost of the “ Lally ” post repairs including labour and engineering costs, in spite of its claim that the warranty excludes any labour costs.

The defect or inadequacy of these posts only came to light a significant time after the completion of the construction and the total cost of these repairs are the responsibility of Riverbend. [85] For the reasons stated previously, I find that the remainder of the repair costs estimate is the responsibility of Mr. Garnett, after deducting the 50% of the interior and exterior wall and porch repairs for which I have assigned responsibility to Mr. Ross.

Summary: [86] I will therefore summarize my award of damages to Mr. Ross as follows: Total Estimated Cost of Repairs (including $2000.00 alternate living allowance to Mr. Ross) $59,791.87 Less 50% Responsibility of Mr. Ross for Walls (interior and exterior), and Porch = $11, 770.00 + 15%, + 15% + 25%(compounded) = $19,457.28 ÷ 2 = $9,728.64 Equals Total Amount to be paid to Mr. Ross Net = $50,063.23 Less Amount to be paid to Mr. Ross by Riverbend $6,595.97

Equals Amount to be paid to Mr. Ross by Mr. Garnett $43,437.26 Total = $50,063.23 [87] Mr. Ross is therefore awarded $43,467.26 against the defendant, Mr. Garnett and $6,595.97 against the defendant, Riverbend. It does not appear that prejudgement interest is warranted because the damages awarded are based on current values. [88] Except as itemized above, the cross-claims are dismissed. Costs: [89] Mr. Ross shall have his costs and disbursements on a party and party basis. It would appear that 70% against Mr. Garnett and 30% against Riverbend may be appropriate.

I recognize that this would not be in the same percentages as the award of damages; however, I would consider the fact that both defendants have resisted this claim to the end and that both have cross-claimed one against the other. I encourage the parties to reach agreement on those costs; however, if agreement cannot be reached, I will hear the parties in chambers on the amount and apportionment of costs as well as the applicability of prejudgement interest at a mutually convenient time and place. [90] If agreement is reached on costs, I will grant an order accordingly, prepared by counsel for Mr.

Ross and consented to by all the parties. __________________________ Boudreau, J